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Leibovitch v. Syrian Arab Republic

United States District Court, N.D. Illinois, Eastern Division

March 31, 2014

SHLOMO LEIBOVITCH, et al., Plaintiffs,
THE SYRIAN ARAB REPUBLIC, et al., Defendants

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For Shlomo Leibovitich, individually, as personal representative of the estate of Noam Leibovitch, and as natural guardian of plaintiffs Shira Leibovitch, Moshe Leibovitch and Nerya Leibovitch, Galit Leibovitich, individually, as personal representative of the estate of Noam Leibovitch, and as natural guardian of plaintiffs Shira Leibovitch, Moshe Leibovitch and Nerya Leibovitch, Shira Leibovitich, a minor, by her gaurdians, Shlomo Leibovitch and Galit Leibovitch, Moshe Leibovitich, a minor, by her gaurdians, Shlomo Leibovitch and Galit Leibovitch, Nerya Leibovitich, a minor, by her gaurdians Shlomo Leibovitch and Galit Leibovitch, Hila Leibovitich, Shmuel Eliad, Miriam Eliad, Plaintiffs: Daniel A. Shmikler, Robert David Cheifetz, Sperling & Slater, P.C., Chicago, IL; David J. Strachman, McIntyre, Tate, Lynch & Holt, Providence, RI.

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Ruben Castillo, Chief United States District Judge.

The Leibovitch family (" Plaintiffs" ), a foreign national family that includes a child citizen of the United States, Shira Leibovitch, won a substantial award pursuant to the terrorism exception of the Foreign Sovereign Immunities Act (" FSIA" ), 28 U.S.C. § 1605A, for various injuries sustained by Shira in a terrorist attack in Israel. Shlomo Leibovitch, et al. v. The Syrian Arab Republic, et al., 2011 WL 444762 (N.D. Ill. Feb. 1, 2011) (" Leibovitch I " ). The Leibovitch family's claims for the intentional infliction of emotional distress arising from Shira's injuries, however, were dismissed by Judge William T. Hart of the Northern District of Illinois on the grounds that the FSIA did not confer subject matter jurisdiction over claims by foreign citizens. Leibovitch v. Syrian Arab Republic, Id. at *2. On appeal, the Seventh Circuit held that Section 1605A of the FSIA did confer subject matter jurisdiction over claims of foreign citizens and remanded for reconsideration of the non-American plaintiffs' intentional infliction of emotional distress (" IIED" ) claims. Shlomo Leibovitch, et al. v. Islamic Republic of Iran, et al., 697 F.3d 561 (7th Cir. 2012) (" Leibovitch II " ). Presently before the Court is Plaintiffs' motion for entry of judgment against Defendants the Islamic Republic of Iran (" Iran" ) and its Ministry of Information and Security (" MOIS" ) (" collectively " Defendants" ).


The previous two opinions have thoroughly canvassed the underlying facts case in this case. The Court takes judicial notice of the findings of fact made by Judge Hart.[1] Therefore, the Court will

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provide background information for context and then proceed to a discussion of the facts pertinent to the IIED claims, which were omitted from the previous opinions. The Court takes these facts from the uncontroverted evidence, including declarations submitted from each plaintiff and expert reports.

A. Background Information

Plaintiffs filed their complaint on April 3, 2008. (R. 1, Compl.) Plaintiffs brought this action against: Iran; MOIS and Ali Yunesi of MOIS; Iranian Does 1-10; Ayotollah Ali Hoseini Khamenei, Supreme Leader of Iran; the Syrian Arab Republic; the Syrian Ministry of Defense, and its Minister of Defense Mustafa Tlass; Syrian Military Intelligence, and its commander Hassan Khalil; Assef Shawkat and Ali Douba of the Syrian Ministry of Defense; the Syrian Air Force Intelligence Directorate and its commander Ibrahim Hueiji; Syrian Does 1-10 and the Palestinian Islamic Jihad (" PIJ" ). ( Id. ) Plaintiffs sought compensatory damages for wrongful death, battery, assault, intentional infliction of emotional distress, negligent infliction of emotional distress, civil conspiracy, aiding and abetting and vicarious liability. ( Id. ) Plaintiffs sought compensatory damages in the amount of $182 million and punitive damages in the amount of $300 million. (R. 64, Pls.' Final Proposed Findings of Fact & Conclusions of Law at 47-89.) Through diplomatic channels, Plaintiffs effectuated service on Iran and MOIS. (R. 26, Summons.) On March 16, 2009, Plaintiffs voluntarily dismissed without prejudice all the Syrian defendants. (R. 30, Pls.' Notice of Voluntary Dismissal.) On April 23, 2009, Judge Hart dismissed without prejudice defendants Ayatollah Ali Hoseini Khamenei, Ali Yunesi, Iranian Does 1-10 and the PIJ for failure to serve pursuant to Federal Rule of Civil Procedure 4(m). (R. 32, Min. Entry.) On that date, Judge Hart also entered a default against Iran and MOIS for failure to appear. ( Id. ) On March 15, 2010, Plaintiffs' submitted their Final Proposed Findings of Fact and Conclusions of Law. (R. 64, Pls.' Final Proposed Findings of Fact & Conclusions of Law

On February 1, 2011, Judge Hart dismissed all named defendants other than Iran and the MOIS without prejudice, (R. 72, Min. Entry), and issued his ruling in Leibovitch I, (R. 73, Opinion, Findings of Fact & Conclusions of Law). As described above briefly, Judge Hart ruled that Shira was injured in " an act of . . . extrajudicial killing" under the FSIA exception for terrorism, 28 U.S.C. § 1605A(a)(1) and that Iran and MOIS were vicariously liable for the PIJ's attack on the Leibovitch family because it openly provided material support and resources to the PIJ. Leibovitch I, 2011 WL 444762. Judge Hart awarded Shira $17.5 million in compensatory damages and an additional $35 million in punitive damages. Id. at *11. He dismissed, however, all of the non-American Plaintiffs' claims for lack of subject matter jurisdiction. Id. at *2. After filing an unsuccessful motion for reconsideration, (R. 75, Mot. for Recons.), Plaintiffs appealed to the Seventh Circuit. On October 17, 2012, the Seventh Circuit issued its opinion in Leibovitch II, holding that the District Court did have subject matter jurisdiction over Plaintiffs' IIED claims because plaintiffs that are foreign national family members of victims of terrorist attacks may bring suit under the FSIA. 697 F.3d at 572. The court held that Shira was a " victim" pursuant to the FSIA, and therefore her foreign national family members

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may bring suit. Id. The court remanded for further proceedings, however, for the District Court to determine whether Plaintiffs had viable IIED claims. Id. at 573. The court noted that while Plaintiffs had jurisdiction to bring their claims under 28 U.S.C. § 1605A(c), Congress did not provide a federal cause of action, and thus the District Court was to determine the viability of Plaintiffs' IIED claims under Israeli law, as Israel was the site of the attack. Id. n.6.

On October 25, 2012, this case was reassigned to this Court for all further proceedings. Plaintiffs filed their motion for a default judgment on April 3, 2013. The Court proceeds to its discussion of the facts pertinent to Plaintiffs' IIED claims.

B. Shlomo Leibovitch

Shlomo Leibovitch is an Israeli citizen who resides in Yemin Orde, Israel. (R. 47, Shlomo Leibovitch Decl. ¶ 1.) On June 17, 2003, Shlomo, along with his wife, Galit; her mother and father, Shmuel and Miriam Elia; his son, Moshe; and his three daughters Noam, Shira, and Hila, traveled in the family's minivan returning home from his nephew's bar mitzvah celebration in Jerusalem. ( Id. ¶ 4.) As the Leibovitch family approached Kalkilya, Shlomo heard the sound of gun blasts from the side of the road and felt the car being hit by bullets. ( Id. ¶ 5.) Shlomo drove away as fast as possible while his wife called the police for help. ( Id. ¶ 6.) He saw Noam lying completely motionless, and Shira was covered in blood and " screaming in agony." ( Id. ¶ ¶ 6-8.) Shlomo and Galit began to perform cardiac and pulmonary resuscitation on Noam. ( Id. ¶ 9.) Nearly twenty minutes later, an army physician and medic arrived at the scene. ( Id. ¶ 12.) The army physician took over Shlomo's efforts to resuscitate Noam, but eventually he stopped, telling Shlomo " there was nothing else anyone could do." ( Id. )

Ambulances transported Shira to Bellinson Hospital in Petah Tikva, where physicians told Shlomo that one bullet was lodged near Shira's spinal column and another had damaged her right hand. ( Id. ¶ ¶ 15-16.) The night of the attack, Shlomo could not sleep because he felt " helpless, anguished and restless." ( Id. ¶ 20.) Following the funeral for 7-year old Noam Leibovitch, who was killed in the attack, the Leibovitch family endured an " emotionally tolling experience" assisting Shira with her recovery. ( Id. ¶ 23.) Shlomo was employed as a deputy general manager at a local youth village, but eventually had to quit his job as a result of the mounting stress his family experienced. ( Id. ¶ 27.) He became a teacher because it required less responsibility and time, but he now earns a much lower salary than he did in his previous position. ( Id. ) Mundane activities, such as going to the mall, create great anxiety for Shlomo. ( Id. ¶ 28.) He relives the attack " dozens of times each day." ( Id. ¶ 29.) Shlomo experiences the pain of Shira's injury and Noam's death daily, describing it as an " open wound that bleeds and continues to hurt without rest." ( Id. ¶ 33.)

Plaintiffs presented the expert report of Dr. Rael Strous, a licensed psychiatrist who performed a clinical interview and psychiatric evaluation on Shlomo, as well as the other plaintiffs in this case. (R. 45-2, Ex. B, Strous Report of Shlomo Leibovitch.) Dr. Strous diagnosed Shlomo with moderate Post Traumatic Stress Disorder (PTSD). ( Id. at 5.) Dr. Strous found that the diagnosis of chronic PTSD was evidenced by the presence of flashbacks, avoidance, and heightened emotional reactivity. ( Id. ) He observed that while some of the symptoms of emotional pain have improved since the attack, many have not,

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and that Shlomo's life " has become irreversibly changed." ( Id. ) He also observed that in addition to personal and family changes, Shlomo's occupational ambition has been affected. ( Id. ) Dr. Strous concluded that " based on these persistent features of chronic PTSD . . . [Shlomo] will continue in the future to suffer chronic symptomatology in the aftermath of the shooting despite considerable time having elapsed since the event." ( Id. )

C. Galit Leibovitch

Galit Leibovitch is an Israeli citizen who resides in Yemin Orde, Israel. (R. 48, Galit Leibovitch Decl. ¶ 1.) After the attack, Galit spent her time at Shira's bedside. ( Id. ¶ ¶ 13-18, 40.) She left to attend Noam's funeral and returned to Shira's bedside immediately thereafter. ( Id. ¶ 19.) Galit spent the year following the attack focused on Shira's recovery. ( Id. ¶ 21.) She transported Shira 55 miles each way three times a week to and from the Tel Hashomer Medical Center for physical therapy sessions that were " very difficult to watch." ( Id. ) Aside from her focus on Shira's physical therapy, Galit " hardly functioned at all" and was unable to perform basic housekeeping requirements such as cooking, shopping, and cleaning. ( Id. ¶ 31.) She required outside assistance with household cleaning. ( Id. )

After two years, Galit attempted to return to her career as a teacher, which she had given up prior to the attack, but was unable to teach a full class. ( Id. ¶ 33.) Instead, she assumed the less arduous role of a tutor. ( Id. ) Currently, Galit is able to work nearly full-time as a teacher but she cannot teach classes in which students have disciplinary issues or work overtime due to the overwhelming stress it causes. ( Id. ¶ 35.) She turned down a promotion at work because she has no ambition or desire to excel professionally. ( Id. ¶ 36.) Galit observes that she is " constantly exhausted, afraid, angry, and stressed" and has " almost no joy in [her] life in general." ( Id. ¶ ¶ 35-36.) She no longer feels safe outside of her home and has difficulty adapting to changes in her routine. ( Id. ¶ ¶ 37.) During holidays and special events, Galit suffers from severe stomachaches, vomiting, and diarrhea. ( Id. ¶ 39.) The attack and Shira's resulting disability have also placed a strain on Galit and Shlomo's marriage and on her other family relationships, forcing her to seek treatment in a psychiatric hospital. ( Id. ¶ 38, 41.) She was prescribed anti-depressants and continues to see a therapist each week. ( Id. ¶ 41.)

Dr. Strous found that Galit suffers from moderate-to-severe PTSD. (R. 45-3, Ex. C, Strous Report of Galit Leibovitch at 4.) He observed that she exhibited avoidance and heightened emotional reactivity. ( Id. at 5.) He also noted that reports from her treating psychologists indicated a decline in cognitive function, and that she previously suffered from depression and anxiety. ( Id. at ...

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